Citation Nr: 0121459
Decision Date: 08/24/01 Archive Date: 08/29/01
DOCKET NO. 95-10 726 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to an increased rating for a herniated disc at L5 with
degenerative changes at L3-L4 and L5-S1, currently rated as 40 percent
disabling.
2. Entitlement to an initial rating in excess of 50 percent for post-
traumatic stresses disorder.
3. Entitlement to an effective date earlier than October 28, 1994, for a
grant of service connection for post-traumatic stress disorder.
REPRESENTATION
Appellant represented by: Carol J. Ponton, Attorney
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The veteran served on active duty from July 1986 to August 1987.
This case comes before the Board of Veterans' Appeals (hereinafter Board)
on appeal from adverse action by the Department of Veterans Affairs
(hereinafter VA) Regional Office in Manchester, New Hampshire, (hereinafter
RO). Following this action, the veteran moved to Florida, and the VA
Regional Office in St. Petersburg, Florida, is the certifying RO.
Review of the record reveals that while the veteran did not appear to have
timely perfected an appeal with respect to the issue of an increased rating
for her back disability (see May 1999 statement of the case), she
reasonably could have inferred from supplemental statements of the case
that no further action on her part was required to perfect an appeal to the
Board with respect to this issue. See eg. notice accompanying the December
1995 supplemental statement of the case. Under these circumstances, the
Board concludes that the most equitable course of action is to assume
jurisdiction of this issue.
With regard to several other issues raised by the veteran and adjudicated
by the RO, review of the record does not reflect a timely perfected appeal
with respect to any additional issue. Accordingly, the adjudication below
is limited to the issues listed on the title page. 38 U.S.C.A. § 7105
(West 1991); 38 C.F.R. § 20.302 (2000).
FINDINGS OF FACT
1. All relevant available evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the RO.
2. The veteran does not have "pronounced" intervertebral disc disease of
the lumbar spine manifested by sciatic neuropathy with characteristic pain
and demonstrable muscle spasm, absent ankle jerk, or other neurological
findings appropriate to the site of the diseased disc with little
intermittent relief.
3. The service-connected back disability is not manifested by a vertebral
fracture or ankylosis.
4. Symptoms of post-traumatic stress disorder are not shown to have
resulted in occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment, thinking, or mood,
due to such symptoms as suicidal ideation; obsessional rituals which
interfere with routine activities; speech that is intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and effectively;
difficulty in adapting to stressful circumstances; or an inability to
establish and maintain effective relationships.
5. There are no extraordinary factors associated with the service-
connected back disability or post-traumatic stress disorder productive of
an unusual disability picture such as to render application of the regular
schedular provisions impractical.
6. Service connection for post-traumatic stress disorder was denied by a
May 1989 rating decision on the basis that there was no evidence of a
sexual assault during service; the veteran was informed of this decision in
June 1989 and a timely appeal to this decision was not perfected by the
veteran; this is the last final rating action addressing this issue on any
basis.
7. The veteran filed a claim for service connection for a psychiatric
disorder received on October 28, 1994; there is no document which could be
construed as a claim to reopen the claim for a psychiatric disorder,
including post-traumatic stress, disorder prior to this date.
8. The RO granted service connection for post-traumatic stress disorder
for post-traumatic stress disorder effective from October 28, 1994,
principally on the basis of a December 1996 decision of the VA Director of
Compensation and Pension conceding that the appellant was sexually
assaulted during service.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 40 percent for a herniated disc
at L5 with degenerative changes at L3-L4 and L5-S1 are not met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4,
4.71a, Diagnostic Codes (DC) 5285-5295 (2000).
2. The criteria for a rating in excess of 50 percent for post-traumatic
stress disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 3.102, 3.321, Part 4, 4.130, DC 9411 (2000).
3. That portion of the May 1989 rating decision denying service connection
for post-traumatic stress disorder is final. 38 U.S.C.A. § 7105 (West
1991); 38 C.F.R. § 3.104(a) (2000).
4. The criteria for an effective date earlier than October 28, 1994, for a
grant of service connection for post-traumatic stress disorder are not met.
38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(q)(1)(ii) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Applicability of the Veterans Claims Assistance Act
There has been a significant change in the law during the pendency of this
appeal with the enactment of the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). The VCAA eliminates
the concept of a well-grounded claim, redefines the obligations of VA with
respect to the duty to assist, and supersedes the decision of the United
States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist
in the development of a claim that is not well grounded). The VCAA also
includes an enhanced duty to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits. The VCAA is
applicable to all claims filed on or after the date of enactment, November
9, 2000, or filed before the date of enactment and not yet final as of that
date. VCAA, § 7, subpart (a), 114 Stat. 2096, 2099 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, even though the
RO did not have the benefit of the explicit provisions of the VCAA, the
Board finds that the VA's duties, as set out in the VCAA, have nonetheless
been fulfilled.
VA has a duty to notify the veteran and his or her representative of any
information and evidence needed to substantiate and complete a claim.
VCAA, § 3(a), 114 Stat. 2096, 2096-97 (2000) (codified as amended at
38 U.S.C.A. §§ 5102 and 5103). The veteran has been notified of the
evidence required for a grant of her claims in multiple statements or
supplemental statements of the case. The discussions therein adequately
informed the veteran of the evidence needed to substantiate her claims,
thereby meeting the notification requirements of the VCAA.
VA has a duty to assist the veteran in obtaining evidence necessary to
substantiate the claim. VCAA, § 3(a), 114 Stat. 2096, 2097-98 (2000)
(codified at 38 U.S.C.A. § 5103A). The veteran has been afforded multiple
examinations of her back, most recently in June 2000, and a report from a
private Magnetic Resonance Imaging (hereinafter MRI) of the back was
received in September 1995. She has also been afforded VA psychiatric
examinations, most recently in June 1997. Numerous other VA and private
medical records have been obtained, and there is no specific reference to
any other pertinent records that need to be obtained. It appears that all
the medical evidence identified by the veteran relative to her claims has
been obtained or accounted for. As such, the Board finds that the
development requirements of VCAA are also met.
In the circumstances of this case, a remand would serve no useful purpose.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board concludes
that in this case VA has satisfied its duties to notify and to assist the
veteran as set out in the VCAA.
II. Increased Rating for the Service-Connected Back
Disability
Disability evaluations are determined by the application of a schedule of
ratings which is based on average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the
various disabilities. Where there is a reasonable doubt as to the degree of
disability, such doubt shall be resolved in favor of the claimant, and where
there is a question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture more nearly
approximates the criteria required for that rating. 38 C.F.R. §§ 3.102,
4.3, 4.7. In addition, the Board will consider the potential application of
the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not
they were raised by the veteran, as well as the entire history of the
veteran's disorder in reaching its decision, as required by Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).
The criteria for rating spinal disabilities codified at 38 C.F.R. § 4.71a,
DC 5285-5295 provide for a rating in excess of 40 percent if there are
residuals of a fracture to the vertebra without cord involvement, but with
abnormal mobility requiring a neck brace (jury mast) (DC 5285); if there is
complete bony fixation (ankylosis) of the spine, either in a favorable or
unfavorable angle (DC 5286); if there is unfavorable ankylosis of the
lumbar spine (DC 5289); or if the disability is manifested by symptoms of
"pronounced" intervertebral disc syndrome, such as persistent symptoms
compatible with sciatic neuropathy with characteristic pain and
demonstrable muscle spasm, absent ankle jerk, or other neurological
findings appropriate to the site of the diseased disc, with little
intermittent relief (DC 5293).
With respect to DC 5285, cases that fall outside the criteria cited under
this diagnostic code listed above are rated in accordance with definite
limited motion or muscle spasm, adding 10 percent for demonstrable
deformity of the vertebral body. Concerning limitation of motion, the
currently assigned rating of 40 percent is the highest assignable rating
for limitation of motion of the lumbar spine under DC 5292. Additionally,
when rating musculoskeletal joint disabilities, such as in the instant
case, the Board must, in addition to the schedular criteria, consider the
application of 38 C.F.R. § 4.40 regarding functional loss due to joint pain
on use or during flare-ups, and 38 C.F.R. § 4.45 regarding weakness,
fatigability, incoordination, or pain on movement of a joint. See DeLuca
v. Brown, 8 Vet. App. 202, 203 (1995).
With the above criteria in mind, the relevant evidence and procedural
history will be briefly summarized. Service connection was granted for
"lumbar strain syndrome" by a May 1989 rating decision. A noncompensable
rating was assigned under DC 5295 (lumbosacral strain). The relevant
evidence reviewed at that time included references to back pain in the
service medical records, with in-service diagnoses to include muscle strain
and muscular back pain. A VA Fee Basis examination conducted in April 1989
revealed tenderness in the lumbar spine and spasms with lumbar motion, and
the diagnosis was lumbar strain syndrome.
Thereafter, the rating for the service-connected back disability was
increased to 20 percent by a November 1993 rating decision. This action
followed receipt of private and VA clinical records in 1993, to include a
Magnetic Resonance Imaging (hereinafter MRI) which demonstrated a moderate
central disc herniation at L4-L5 and degenerative changes of the discs at
L4-L4 and L5-S1. Upon examination in July 1993, motion in the back was
measured to 40 degrees of flexion, 20 degrees of extension and left lateral
bending to 30 degrees. Straight leg raising was negative bilaterally, and
the reflexes in the knees and ankles were normal. There was also no
sensory loss in the lower extremities.
The rating for the back disability was increased to 40 percent under DC
5292 by a December 1995 rating decision following an August 1995 VA
examination which revealed severe limitation of lumbar motion. More
specifically, lumbar flexion was limited to 20 degrees and the veteran
could not tolerate any extension. There were no lumbar spasms, but the
right sacroiliac joint was tender. Straight leg raising was resisted at 20
degrees on the right and 70 degrees on the left and there was "give way"
weakness in both iliopsoas muscles. There was slight weakness in the
quadriceps muscles. A MRI conducted in September 1995 demonstrated
moderate concentric bulging at L4-L5, and the findings at this area were
said to have "decreased to some extent" when compared with the prior MRI.
Severe limitation of lumbar motion was again demonstrated upon VA
examination in October 1995, and mild muscle spasms were noted in the
paravertebral regions of the lumbosacral spine. There was tenderness to
palpation over the lower lumbar spinous processes. The veteran was intact
neurologically, and straight leg raising was negative bilaterally.
Following an Administrative Review conducted by VA Central Office in
September 1996, it was determined that the degenerative joint and disc
disease was part of the service connected low back disability, and that
this disability was more appropriately rated under DC 5010-5293. This
change was effectuated by September 1996 rating decision, which listed the
service-connected disability as "herniated disc, L4-L5, degenerative
changes of L3-L4 and L5-S1 disc." The 40 percent rating has been
continued and confirmed until the present time.
The additional evidence includes reports from a June 1997 VA examination in
which the veteran complained about chronic intermittent pain in the lower
back that radiated into the buttocks and upper extremities. It was
reported that there had been no "actual" neurologic findings such as
numbness, paresthesia or weakness. The veteran did complain about
unsteadiness in her legs, occasional significant nocturnal pain, and
morning stiffness in the lower back. Upon examination, severe limitation
of motion was again demonstrated, with mild pain noted on extremes of
motion. A mild muscle spasm was present in the paravertebral region,
especially on the right side of the lumbar spine. Again, the veteran was
said to be intact neurologically. Reflexes were bilateral and equal and no
motor or sensory deficits were noted. An X-ray of the lumbar spine
conducted in June 1997 was negative.
An orthopedic evaluation conducted for the Social Security Administration
in June 1998 showed the veteran reporting that "anything and everything"
she does produces pain in her back. She stated that there was a
"lightening pain" that radiates down her legs and deep bone pain in her
hips. It was reported that she takes Percocet and Darvocet every few
hours. Upon examination, she was shown to walk with a normal gait. While
lying on her back, the veteran could only lift her leg about ten degrees
with straight leg raising testing. Rotation of the spine elicited pain
along the whole length of the spine. Straight leg raising was to 90
degrees while the veteran was sitting on the examining table and, again,
the neurologic examination over both lower extremities was negative. Motor
and sensory testing was also negative, and reflexes were equal and
symmetric. The examiner stated that the veteran was "very incapacitated"
from her back disability, and that this condition had evolved into chronic
pain syndrome. It was indicated that "at best" the veteran could work in
a sedentary position, though it was also noted that the veteran's
psychological reaction to her pain was disproportional to her actual
physical restrictions as some of the findings upon examination were
inconsistent.
The veteran was afforded another VA examination October 1998, at which time
she described fatigability and weakness in her back, with "flareups" of
severe pain rendering her bedridden and resulting in losing "100 percent"
of functioning. These flareups were said to occur twice a month and to
last five days. Upon examination, the lumbar spine showed spasm of the
right lumbodorsal muscles with a normal lordotic curve. The range of back
motion was again essentially severe with pain. No atrophy was noted in the
lower extremities and the veteran was able to walk on her heels and toes
with help. Again, no neurologic or sensory deficits were demonstrated in
the lower extremities.
The most recent clinical evidence is contained in reports from VA
examinations conducted in June 2000. A neurological examination conducted
at that time showed the veteran complaining about a constant ache in the
lower back radiating across her hips and down both lower extremities.
Various movements, including coughing, were said to aggravate the pain, and
she said the pain caused her to favor her right leg when she walks. Again,
it was indicated that there were episodes of pain that were so severe as to
render her bedridden. Upon examination, straight leg raising was positive
on the right at 60 degrees and negative on the left at 90 degrees. There
was marked give-way weakness in the legs and right foot and some weakness
in the quadriceps and hamstrings. She was noted to walk with an antalgic
gait favoring the right leg, but was able to walk on her heels and toes
without obvious discomfort. There was no evidence of atrophy. Sensation
was diminished to pinprick slightly in the right leg along the medial
aspect below the knee, felt to possibly involve the L4 distribution. There
was decreased sensation to pinprick in the left leg, thigh and foot. There
were no other sensory abnormalities and reflexes were intact.
Following the examination, the physician remarked that there was marked
functional overlay to the veteran's examination and "no definite weakness
is suspected." It was noted that reflexes were intact, but there were
some "subjective" sensory changes. In addition, the examiner stated
"[t]here is no evidence of any significant lumbar radiculopathy, however,
and the cause of her 'nerve related pain' is not clear." The examiner
opined that the complaints of "nerve pain" were related more to a
myofascial pain syndrome than an actual nerve injury or nerve root injury.
The examiner also concluded that given the chronic pain syndrome, she
seemed unlikely to be able to work. A June 2000 X-ray of the lumbar spine
was negative.
Pertinent findings from a general VA medical examination in June 2000
included a posture that demonstrated a scoliosis, muscle spasm and a droop
to the right shoulder. The veteran was observed to walk with a limp, and
tiptoe and heel walking was said to be "extremely difficult." Movement
beyond voluntary motion was said to result in outbursts of "pain and
agony." Upon examination, there was extreme muscle tenderness on
palpation of the lumbar spine and severe spasm evidenced by shortening of
the left lower extremity. Reflexes, knee jerks and ankle jerks were normal
and testing revealed weakness in the left lower extremity. All sensations
appeared normal.
Applying the pertinent legal criteria to the evidence listed above, while
the pertinent clinical history associated with the service-connected back
disability has been considered by the Board, the primary concern in a claim
for an increased evaluation is the present level of disability. See
Francisco v. Brown, 7 Vet. App. 55 (1994). In Francisco, the Court stated
that although a rating specialist was directed to review the recorded
history of a disability in order to make an accurate evaluation, the
regulations did not give past medical reports precedence over current
findings. Id. at 58. Hence, for purposes of application of the schedular
criteria, the Board assigns the greater weight of probative value to the
most recent pertinent medical evidence, in particular the reports from the
June 2000 VA examinations.
The findings from the most recent VA examinations, or any other
examination, do not reflect clinical findings which support a higher
disability evaluation pursuant to any of the diagnostic codes listed at DC
5285-5295. It is noted initially that this evidence does not include the
severe neurological or other findings associated with "pronounced"
degenerative disc disease. As such, a rating in excess of 40 percent
cannot be assigned under DC 5293. In this regard, the examiner who
conducted the June 2000 VA neurological examination found "no evidence of
any significant lumbar radiculopathy." This conclusion is supported by
the reports from the other VA examinations summarized above, which
demonstrated few, if any, neurological findings. Also relevant in this
regard are the examination findings with respect to the veteran's
exaggeration of symptoms.
As for a rating in excess of 40 percent under other diagnostic criteria for
the spine, the evidence does not show that the lumbar spine disability
involves (or ever involved, for that matter) vertebral fractures (DC 5285);
complete bony fixation (ankylosis) of the spine, either in a favorable or
unfavorable angle (DC 5286); or unfavorable ankylosis (DC5289). Thus,
increased ratings under these diagnostic codes are not warranted.
Increased ratings under DC 5292 (limitation of motion of the lumbar spine),
or DC 5295 (lumbosacral strain) are not warranted, as the maximum
assignable ratings under these diagnostic codes is 40 percent.
The recent clinical evidence reflects complaints of pain in the back,
particularly with motion. However, these complaints of pain do not warrant
an increased rating above the now assigned 40 percent schedular level under
38 C.F.R. §§ 4.40 and 4.45 because the medical evidence does not
substantiate "additional" compensable loss of motion loss in the low back
due to pain on use or during flare-ups, or due to weakened movement, excess
fatigability, or incoordination. DeLuca, 8 Vet. App. at 202. As
indicated, the 40 percent rating currently assigned is the maximum
assignable rating for limitation of lumbar motion. Moreover, although the
Board is required to consider the effects of pain when making a rating
determination, which has been done in this case, it is emphasized that the
rating schedule does not provide a separate rating for pain. See Spurgeon
v. Brown, 10 Vet. App. 194, 196 (1996). Although the examiner in June 2000
reported that the veteran seemed "unlikely to be able to sustain"
employment at this time, given her "chronic pain syndrome and abuse of
analgesics that she described," the physician had also noted "marked
functional overlay" to the veteran's examination. The Board notes that the
examiner found no evidence of any significant lumbar radiculopathy and
attributed the veteran's complaints of "nerve pain" to "a myofascial
pain syndrome" rather than to a nerve or nerve root" problem, which one
might associate with the service-connected herniated disc with degenerative
changes. The examiner also found no definite weakness and no atrophy of
the lower extremities, which would be indicative of disuse.
Also considered by the Board were the provisions of 38 C.F.R.
§ 3.321(b)(1), which state that when the disability picture is so
exceptional or unusual that the normal provisions of the rating schedule
would not adequately compensate the veteran for his service-connected
disabilities, an extraschedular evaluation will be assigned. To this end,
the Board notes that neither frequent hospitalization nor marked
interference with employment due to the veteran's service-connected back
disability is demonstrated, nor is there any other evidence that this
condition involves such disability that an extraschedular rating would be
warranted under the provisions of 38 C.F.R. § 3.321(b)(1).
The "positive" evidence represented by the lay assertions with regard to
the degree of disability in the veteran's lumbar spine, to the extent that
they represent contentions for entitlement to a rating in excess of 40
percent, are not accompanied by supporting clinical evidence; as such, the
Board finds this evidence to be of minimal probative value. Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992). Thus, as the "negative" evidence
outweighs the "positive" evidence, a rating in excess of 40 percent for
the veteran's service-connected back disability cannot be assigned.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
III. Entitlement to an Initial Rating in excess of 50
percent for Post-traumatic Stress Disorder
In light of the fact that the claim for increased compensation stems from
an appeal of the initial disability rating assigned for post-traumatic
stress disorder (see January 30, 1997, statement submitted on behalf of
the veteran), the adjudication below will include consideration of whether
there is any basis for "staged" ratings. See Fenderson v. West, 12 Vet.
App. 119 (1999).
Occupational and social impairment with reduced reliability and
productivity due to such symptoms of post-traumatic stress disorder as:
flattened affect; circumstantial, circumlocutory, or stereotyped speech;
panic attacks more than once a week; difficulty in understanding complex
commands; impairment of short and long-term memory (e.g., retention of only
highly learned material, forgetting to complete tasks); impaired judgment;
impaired abstract thinking; disturbances of motivation and mood; or
difficulty in establishing and maintaining effective work and social
relationships warrants a 50 percent disability rating. 38 C.F.R. § 4.130,
DC 9411.
Occupational and social impairment due to post-traumatic stress disorder
with deficiencies in most areas, such as work, school, family relations,
judgment, thinking, or mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities; speech that is
intermittently illogical, obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function independently, appropriately
and effectively; impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of personal
appearance and hygiene, difficulty in adapting to stressful circumstances
(including work or a worklike setting); or an inability to establish and
maintain effective relationships warrants a 70 percent disability rating.
38 C.F.R. § 4.130, DC 9411.
With the above criteria in mind, the pertinent facts and procedural history
will be summarized. Service connection for post-traumatic stress disorder
was granted by a January 1997 rating decision. A 30 percent rating was
assigned effective from April 4, 1995. The effective date was changed to
October 28, 1994, by a March 1997 rating decision based on receipt of a
claim on this date construed by the RO to represent an intent to reopen the
claim for service connection for post-traumatic stress disorder. The
veteran's October 1994 correspondence referred to depression and "service
traumas.'
In June 1997, the veteran was afforded a VA psychiatric examination, at
which time she reported having headaches, insomnia, anxiety attacks and
claustrophobia which she claimed was due to post-traumatic stress disorder.
She indicated that she had not worked since 1992, and she reported having
panic attacks that feel like heart attacks. She described having memories
of the traumatic event (an in-service sexual assault) which resulted in
post-traumatic stress disorder, and reported that odd things trigger her
fears (i.e. seeing men with mustaches, and certain voices or smells). It
was noted that she avoids crowds and has difficulty with relationships, and
that she has a temper that she has learned to control. The veteran is
married to her second husband, and they have been separated "on and off."
She has a child, and reports being paranoid about having anybody baby-sit
besides her mother.
Upon examination, the veteran appeared healthy and well-groomed. During
the interview, she initially was tense and her speech was sometimes
pressured. Lapses in thought process were observed and her mood was
depressed. Affect was flat or angry, and there were possible indications
of derealization. The veteran reported hallucinations but no illusions.
Thought process was goal directed and there was past and present suicidal
ideation. She was oriented to all spheres but she seemed to have a problem
with long term memory. Short term memory was intact, but the level of
insight and abstraction were minimal. Judgment was said to be good.
Following the examination, the GAF score was 45, which corresponds to
between "serious" and "major" social and industrial impairment.
After the June 1997 VA examination, the rating for post-traumatic stress
disorder was increased to 50 percent, effective from October 28, 1994, by
an October 1997 rating decision. There remains for consideration, however,
entitlement to a rating in excess of 50 percent. AB v. Brown 6 Vet. App.
35 (1993).
An increased (70 percent) rating requires deficiencies in "most areas"
and the complete inability to establish and maintain effective
relationships. 38 C.F.R. § 4.130, DC 9411. A review of the clinical
evidence of suggests that while the veteran's post-traumatic stress
disorder results in some difficulties, the GAF score and other clinical
findings from the June 1997 VA examination are not indicative of a person
who is deficient in "most" areas. Moreover, the veteran does not have
the complete inability to maintain all relationships, as is reflected by
the fact that, although she has been separated from him at times, she is
currently married and has a child. Moreover, the constellation of
symptomatology required to establish a 70 percent rating under
38 C.F.R. § 4.130, DC 9411, such as obsessional rituals, near continuous
panic or depression, or the neglect of personal hygiene and appearance, is
not demonstrated by the findings from the June 1997 VA examination as
described above.
In short, while the Board has reviewed all the relevant evidence of record
during the appeal period, to include the testimony presented by the veteran
at her March 1996 and June 1997 hearings in which she claimed she has
symptomatology of post-traumatic stress disorder warranting the assignment
of a 100 percent rating, it has concluded that the facts summarized above
do not warrant the assignment of a rating in excess of 50 percent. There
is also no evidence indicating that an extraschedular rating would be
warranted under 38 C.F.R. § 3.321(b)(1). While the Board does not intend
to minimize the severity of the veteran's psychiatric impairment resulting
from her post-traumatic stress disorder, it simply does not find that the
criteria for a rating in excess of 50 percent under the VA Schedule for
Rating Disabilities, or on an extraschedular basis, are met.
The Board has also reviewed the claim for an increased rating mindful of
the guidance of Fenderson. The RO has noted consideration of all pertinent
evidence, and has assigned the fifty percent rating effective from the
grant of service connection. The Board on review concurs with that rating.
The logic set forth above, in determining that a rating in excess of 50
percent is not warranted, is the same as used to determine that higher
"staged" ratings are not warranted for an earlier time. Thus, a rating
in excess of 50 percent is not warranted for any portion of the time period
in question. In this regard, a review of the clinical evidence of record
during the appeal period dated prior to the June 1997 VA examination does
not reveal any findings which would warrant the assignment of a rating in
excess of 50 percent. For example, the GAF score following a VA
psychiatric examination conducted in October 1996 was 60, which is
reflective of only moderate social and industrial impairment, less than was
shown at the time of the June 1997 VA examination. The findings from the
October 1996 examination were otherwise essentially descriptive of similar,
and certainly not more severe, symptomatology demonstrated in June 1997.
(CONTINUED ON NEXT PAGE)
IV. Entitlement to an Effective Date Earlier than
October 28, 1994, for a Grant of Service Connection for
Post-traumatic Stress Disorder.
Once a RO decision becomes final, absent submission of new and material
evidence, the claim may not thereafter be reopened or readjudicated by VA.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2000); Suttman v.
Brown, 5 Vet. App. 127, 135 (1993). New and material evidence means
evidence not previously submitted to agency decisionmakers that bears
directly and substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by itself and in
connection with evidence previously assembled is so significant that it
must be considered to fairly decide the merits of the claim. 38 C.F.R. §
3.156(a) (2000).
An award granted on the basis of receipt of new and material evidence,
other than service department records, may not be made effective prior to
receipt of the claim to reopen. 38 U.S.C.A. § 5110(a) (West 1991);
38 C.F.R. § 3.400(q)(1)(ii) (2000).
Service connection for post-traumatic stress disorder was denied by a May
1989 rating decision, essentially on the basis that there was no evidence
of an in-service sexual assault which the veteran claimed resulted in post-
traumatic stress disorder. The veteran was informed of this decision in
June 1989, and a timely appeal to this decision was not perfected by the
veteran. As such, that portion of the May 1989 rating decision which
denied entitlement to service connection for post-traumatic stress disorder
is "final." 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). This is the last
final decision denying the claim for service connection for post-traumatic
stress disorder on any basis.
As indicated, service connection for post-traumatic stress disorder was
granted by a January 1997 rating decision, principally on the basis of a
December 1996 decision of the VA Director of Compensation and Pension
conceding that the veteran was assaulted during service. Ultimately, the
RO assigned October 28, 1994, as the effective date of service connection.
See March 1997 rating decision. This was based on a decision by the RO
construing receipt of a claim on this date as representing an intent by the
veteran to reopen her claim for service connection for post-traumatic
stress disorder. Id.
Absent a claim of clear and unmistakable error in the May 1989 rating
decision, an issue not raised by the veteran or adjudicated by the RO, an
earlier effective date for the grant of service connection for post-
traumatic stress disorder cannot be assigned unless there is some document
of record that can be construed as a "claim to reopen" the claim for
service connection for post-traumatic stress disorder prior to October 28,
1994. No such document is revealed upon review of the claims file, and the
Board thus finds that there is no legal basis for an effective date for the
grant of service connection for post-traumatic stress disorder prior to
October 28, 1994. Thus, as the controlling legal criteria codified at
38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q)(1)(ii) provide that the
effective date for a grant of service connection based on a reopened claim
can be no earlier than the date of receipt of the claim to reopen, and
there is no legal exception or authority that applies to the facts of this
case, the Board has no choice but to deny the veteran's request for an
earlier effective date for the grant of service connection for post-
traumatic stress disorder.
While the Board is sympathetic to the veteran's testimony presented at the
June 1997 hearing with regard to difficulties with her representation at
the time the May 1989 rating decision was rendered, the notice that
accompanied this decision did notify the veteran of her appellate rights.
See reverse side of VA Form 20-8956 dated June 6, 1989. There is also
evidence that the veteran was aware of her appellate rights at that time as
well, because she did express disagreement with the ratings assigned for
her back and knee disabilities assigned by the May 1989 rating decision
through her representative in an October 1989 statement. Thus, as the
Board is bound by the rules and regulations of VA, an earlier effective
date cannot be assigned. See 38 U.S.C.A. § 7104(c) (West 1991).
ORDER
Entitlement to a rating in excess of 40 percent for a herniated disc at L5
with degenerative changes at L3-L4 and L5-S1 is denied.
Entitlement to an initial rating in excess of 50 percent for post-traumatic
stress disorder is denied.
Entitlement to an effective date earlier than October 28, 1994, for a grant
of service connection for post-traumatic stress disorder is denied.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals